Alien Enemies, Occupation, & Birthright Citizenship

Previously,[i] I considered the relationship between the concept of postliminium and citizenship for those born in American territory occupied by a hostile foreign power.[ii] In particular, I discussed whether or not, under either federal law[iii] or the Fourteenth Amendment,[iv] birthright citizenship would be available to persons born US citizens or alien friends residing in occupied territory. For a variety of reasons, I concluded that it would be reasonable to resolve this question in the affirmative using the doctrine of postliminium, which holds that,

…after a belligerent occupation of territory has ended, as by defeat or expulsion of the enemy or relinquishment of the territory by voluntary departure of the occupant, and the absent sovereign returns, the territory, its inhabitants and property come under the control of the original and now restored sovereign, and the legal state of things is conceived for many purposes to have been continuously in existence.[v]

Under the doctrine of postliminium, it could therefore be held that a person born within occupied territory was de jure “subject to the jurisdiction” of the United States at birth, notwithstanding the occupying power’s de facto displacement[vi] of American jurisdiction within said territory at the time the person was born. Via legal fiction, the “jurisdiction requirement” of the Fourteenth Amendment’s “Citizenship Clause” would be satisfied, and the person in question could therefore be deemed a natural-born American citizen despite being born in occupied American territory.

Postliminium & the Exception for Invading Enemy Aliens

This solution creates a new problem, however. The American rule of birthright citizenship has long excluded two categories of persons born upon American soil:

Children born to alien enemies accompanying an invading enemy army.[viii]

The concept of postliminium is irrelevant to the former, whose possession of diplomatic immunity excludes them from subjection to American jurisdiction,[ix] and therefore renders them ineligible for birthright citizenship under the Fourteenth Amendment. What about the “invading enemy aliens” exception? In United States v. Wong Kim Ark,[x] the Supreme Court reconciled this exception with the Citizenship Clause by citing a prior case, United States v. Rice, in which it was stated:

By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them, for where there is no protection or allegiance or sovereignty, there can be no claim to obedience. Castine was therefore, during this period, so far as respected our revenue laws, to be deemed a foreign port….[xi]

In the eyes of the Wong Kim Ark court, therefore, native-born children of invading enemy aliens (hereinafter “IEAs”) were excluded from Citizenship Clause eligibility via the aforementioned phenomenon of jurisdictional displacement: When a hostile enemy force occupies a portion of the United States, jurisdiction[xii] over the territory thus occupied (and hence the people located within it) is shifted from the United States government to the authorities established by the occupying power.[xiii] Since any children born to IEAs would obviously be located within the occupied territory, they could not be deemed “subject to the jurisdiction” of the United States, and would not therefore be eligible for birthright citizenship under the Fourteenth Amendment.

What happens, however, after the occupation ends? If the doctrine of postliminium is applicable to children born of US citizens or alien friends residing in the territory, it would appear to be applicable to children of IEAs as well. If birthright citizenship is available to the former category of children, then why not to those born of IEAs? But such a conclusion seems absurd. Not only is it contrary to a long-standing principle of Anglo-American law, it would also appear to reward a particularly gross form of “bad behavior.” Unlike illegal aliens, whose “invasion” of the United States is largely metaphorical, invading enemy aliens would have participated in a literal invasion of the United States. They would not only have provided aid & comfort to the enemies of this country; but many would probably have waged war against it. And we reward such quasi-treasonous[xiv] behavior by making citizens of their descendants? Legal questions notwithstanding, one suspects that the popular outrage generated by such a judicial holding would dwarf that currently associated with illegal aliens’ “anchor babies.”[xv] Yet it seems that the only way of avoiding this outcome would be to deny postliminium’s applicability to anyone born in occupied territory – whether of alien enemies, alien friends, or US citizens – and accept the unpleasant consequences thus imposed upon the latter two categories.

Combatant Immunity to the Rescue?

Or is it? Recall that families of diplomats are excluded from the Citizenship Clause via their possession of diplomatic immunity. Perhaps there is something similar available for IEAs? Well, there is the concept of “lawful combatant immunity,” which has long enjoyed recognition in American law,[xvi] and which does substantially exempt lawful combatants from civil or criminal liability for lawful acts of war.[xvii] Hence, if Canada invaded the United States, we could not charge a captured Canadian soldier with murder for killing one of our own in combat; nor with arson & destruction of property for (say) destroying an M-1A2 Abrams.

While some[xviii] have pointed to such immunity as a way of reconciling the IEA exclusion with the Fourteenth Amendment, such a notion is problematic for a couple of reasons. First, lawful combatant immunity only inheres to persons who are, well, lawful combatants. Unlawful combatants – i.e., those who fail to abide[xix] by Article 1[xx] of the Hague Regulations – are ineligible for combatant immunity,[xxi] and can therefore be subjected to criminal liability not only for war crimes, but also for acts committed during the normal course of combat operations.[xxii] Yet if the IEA exception is premised upon the existence of combatant immunity, then the absence of such immunity would seem to render the Citizenship Clause applicable to unlawful combatants’ children. It certainly seems odd to reward unlawful combatants in this manner.

Second, and more importantly, combatant immunity only applies to, well, combatants. The IEA exception has historically applied not only to alien enemies who take part in combat operations, but also to civilian, non-combatant alien enemies who accompany the army (e.g., retainers, sutlers, camp followers).[xxiii] An IEA exception premised upon combatant immunity would therefore appear to exclude only those born to combatants, not to (say) camp followers. The question of non-combatancy raises an even more problematic issue, however: A child born of, or fathered by, an IEA would clearly not be a combatant, and would therefore lack combatant immunity. So how could that child not be considered “subject to the jurisdiction” of the United States, if born in occupied American territory? Lacking combatant immunity, it seems such a child would be subject to American jurisdiction; but if so, his resultant eligibility for birthright citizenship would eviscerate the IEA exception.

Jurisdiction and Invading Armies

However, there is another possibility. Recall that, in order to encompass all enemy aliens associated with an invading army, the IEA exception must include both combatants belonging to said army, as well as civilians merely accompanying it. The question then becomes, is there a legal principle that exempts persons either belonging to, or associated with, a hostile invading army from the jurisdiction of the invaded country? In fact, such a principle not only exists, but has also commanded long-standing acceptance in American law.

In his 1812 opinion in The Exchange v. McFaddon, Chief Justice John Marshall acknowledged that a friendly army transiting the territory of another sovereign was exempt from that sovereign’s jurisdiction:

A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is where he allows the troops of a foreign prince to pass through his dominions.

In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising it, the purpose for which the free passage was granted would be defeated and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining the exclusive command and disposition of this force. The grant of a free passage therefore implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline and to inflict those punishments which the government of his army may require.[xxiv]

However, immediately afterwards, the Marshall also hinted at a similar jurisdictional exemption for a hostile invading army:

But if, without such express permit, an army should be led through the territories of a foreign prince, might the jurisdiction of the territory be rightfully exercised over the individuals composing this army?

Without doubt, a military force can never gain immunities of any other description than those which war gives by entering a foreign territory against the will of its sovereign.[xxv]

The italicized text of the aforementioned excerpt clearly implies that “war gives” a military force certain “immunities” when it invades a “foreign territory,” even when such invasion occurs “against the will of its sovereign.” Although it is unclear what sort of “immunities” Marshall may have had in mind, given the immediately-preceding discussion of territorial jurisdiction, it seems likely that among such “immunities” was exclusion of the invading army from the reach of the invaded country’s jurisdiction.

The concept of jurisdictional exemptions for an invading army received implicit executive recognition a few decades later, during the Mexican War. In particular, when United States military forces occupied Mexico, Maj. Gen. Winfield Scott issued General Orders No. 20,[xxvi] which implicitly exempted the invading United States troops from Mexican jurisdiction,[xxvii] and reserved trial & punishment of crimes involving such troops to military commissions.[xxviii] Nor was this exemption an oversight on Scott’s part: When one of his subordinates, Maj. Gen. William Worth, conceded Mexican jurisdiction over American troops as part of an agreement with the town of Puebla,[xxix] Scott acted promptly to eliminate such jurisdiction:

Scott, before knowing or suspecting what had been conceded to Mexican laws, made sharp comments on the attitude of the Puebla authorities. Naturally he felt seriously troubled. Worth even allowed them to try citizens who had killed American soldiers, and of course the culprits were acquitted. Scott thought seriously of evacuating the city and recapturing it in order to wipe out that concession; but, concluding that such a course would be rather farcical, he simply overrode the concession by republishing general orders 20.[xxx]

This idea of an invading army’s exemption from the jurisdiction of the invaded country eventually acquired explicit judicial sanction a few decades later. In Coleman v. Tennessee, decided in the wake of the Civil War, the Supreme Court made explicit what had merely been implied in The Exchange:

If an army marching through a friendly country would thus be exempt from its civil and criminal jurisdiction, a fortiori would an army invading an enemy’s country be exempt. The fact that war is waged between two countries negatives the possibility of jurisdiction being exercised by the tribunals of the one country over persons engaged in the military service of the other for offenses committed while in such service. Aside from this want of jurisdiction, there would be something incongruous and absurd in permitting an officer or soldier of an invading army to be tried by his enemy whose country he had invaded.[xxxi]

Nor is this concept merely a remnant of a bygone era: In the U.S. Army’s current field manual on the laws of war, the exemption of both occupying forces & attached civilians from local jurisdiction is explicitly mentioned:

Military and civilian personnel of the occupying forces and occupation administration and persons accompanying them are not subject to the local law or to the jurisdiction of the local courts of the occupied territory unless expressly made subject thereto by a competent officer of the occupying forces or occupation administration. The occupant should see to it that an appropriate system of substantive lam applies to such persons and that tribunals are in existence to deal with civil litigation to which they are parties and with offenses committed by them.[xxxii]

In view of the above, it seems there is an alternative ground whereby children born to IEAs of a hostile occupying power could be deemed exempt from American jurisdiction. Such a jurisdictional exclusion would result, not from the ousting of US jurisdiction as a result of occupation; nor from the unwieldy notion of combatant immunity; but rather from the general principle that persons attached or belonging to an invading military force are exempt from the jurisdiction of the invaded country. Given this principle, the IEA exception could be reformulated as follows: Children born to invading enemy aliens – whether military or civilian – would be among the “persons accompanying” an occupying army, and as such, would “not [be] subject to the local law or to the jurisdiction of the local courts of the occupied territory….”[xxxiii] That being the case, even if such children were born in occupied American territory, they could not be deemed “subject to the jurisdiction” of the United States at birth, and would therefore be ineligible for birthright citizenship under the Fourteenth Amendment.

[iii] See, e.g., 8 U.S.C. §1401(a) (providing that “a person born in the United States, and subject to the jurisdiction thereof” shall be a “citizen[] of the United States at birth”).

[iv] U.S. Const. amend XIV, § 1, cl. 1 (“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”).

[vi] LAND WARFARE, supra note 1, at 139 (“[Occupation] presupposes a hostile invasion…as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.”); also Picciotti, supra note 1, at 30 (“[U]pon occupying a country, the belligerent at once is invested with absolute executive, legislative, and judicial authority.”).

[vii] See, e.g., Calvin’s Case, 7 CO. REP. 1a, 18a, 77 ENG. REP. 377, 399 (K.B. 1608) (“[I]f any of the King’s ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out of the King’s dominions.”); Inglis v. Sailor’s Snug Harbor, 28 U.S. (3 Pet.) 99, 155 (1830) (Story, J., dissenting) (“So the children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.”); Lynch v. Clarke, 1 Sand. Ch. 583, 658 (N.Y. Ch. 1844) (“The exceptions are the children of ambassadors, (who are deemed to be born within the allegiance of the sovereign represented,) and the children of our own citizens born abroad.”); United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) (stating that the Fourteenth Amendment excluded from birthright citizenship “children of foreign sovereigns or their ministers”).

[viii] Calvin’s Case, 7 CO. REP. 1a, 18b, 77 ENG. REP. 377, 399 (K.B. 1608) (“[I]f enemies should come into any of the King’s dominions, and surprise any castle or fort, and possess the same by hostility, and have issue there, that issue is no subject to the King, though he be born within his dominions, for that he was not born under the King’s ligeance or obedience.”); Inglis v. Sailor’s Snug Harbor, 28 U.S. (3 Pet.) 99, 156 (1830) (Story, J., dissenting) (“Thus, the children of enemies, born in a place within the dominions of another sovereign then occupied by them by conquest are still aliens….”); 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 4 (9th ed. 1858) (“If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a state while abroad, and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law, that during such hostile occupation of a territory, if the parents be adhering to the enemy as subjects de facto, their children, born under such temporary dominion, are not born under the allegiance of the conquered.”) (footnotes omitted); United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) (stating that the Fourteenth Amendment excluded from birthright citizenship children of “enemies within and during a hostile occupation of part of our territory”).

[ix] See Act of Apr. 30, 1790, Ch. 9, § 25, 1 Stat. 112, 117-118 (enshrining diplomatic immunity via federal statute); also 5 Op. Att’y. Gen. 69, 70 (1849) (“The laws of the United States…vindicate the principles of the extra-territoriality of the minister, his family, and other persons attached to the legation….”); Memorandum from John W. Witt, San Diego City Att’y to Sgt. W. H. Campbell, SDPD-CIU (Nov. 7, 1986), available athttp://docs.sandiego.gov/memooflaw/ML-86-131.pdf (“In 1790, Congress granted by statute complete immunity from prosecution to all diplomatic personnel and their families.”).

[xii] BLACK, supra note 1, at 927-928 (defining “Jurisdiction” as “A government’s general power to exercise authority over all persons and things within its territory; esp., a state’s power to create interests that will be recognized under common law principles as valid in other states….”) (citations omitted).

[xiii] LAND WARFARE, supra note 1, at 139 (“[Occupation] presupposes a hostile invasion…as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.”); also Picciotti, supra note 1, at 30 (“[U]pon occupying a country, the belligerent at once is invested with absolute executive, legislative, and judicial authority.”).

[xiv] Such actions would not be treasonous in a legal sense, since the IEAs in question owed no allegiance to the United States. Carlton F.W. Larson, The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem, 154 U. PA. L. REV. 863, 875-878 (2006) available athttp://ssrn.com/abstract=885584 (noting that, in the English law of treason that was well-understood by the framers of the Constitution, invading enemy aliens could not be tried for treason).

[xvi] As early as 1863, for example, Article 57 of the Lieber Code noted that, “So soon as a man is armed by a sovereign government and takes the soldier’s oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offenses.” FRANCIS LIEBER, INSTRUCTIONS FOR THE GOVENRMENT OF ARMIES OF THE UNITED STATES IN THE FIELD 20 (Government Printing Office, 1898) (1863) available athttp://www.loc.gov/rr/frd/Military_Law/pdf/Instructions-gov-armies.pdf. Such recognition has continued to the present day. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 793 (1950) (Black, J., dissenting) (“[L]egitimate ‘acts of warfare,’ however murderous, do not justify criminal conviction…. [I]t is no ‘crime’ to be a soldier….”) (citations omitted); United States v. Lindh, 212 F.Supp.2d 541, 553-554 (E.D. Va. 2002) (discussing the concept of lawful combatant immunity); Ho & Yoo, supra note 1, at 221 (“The customary laws of war immunize only lawful combatants from prosecution for committing acts that would otherwise be criminal under domestic or international law.”) (footnotes omitted).

[xvii] Dow v. Johnson, 100 U.S. 158, 169 (1879) (“This doctrine of nonliability to the tribunals of the invaded country for acts of warfare is as applicable to members of the Confederate army, when in Pennsylvania, as to members of the national army when in the insurgent states. The officers or soldiers of neither army could be called to account civilly or criminally in those tribunals for such acts, whether those acts resulted in the destruction of property or the destruction of life….”).

[xviii] James C. Ho, Defining American: Birthright Citizenship and the Original Understanding of the Fourteenth Amendment, 9 GREEN BAG 2D 367, 369 (2006) available athttp://www.ilw.com/articles/2007,0212-ho.pdf (“[The Citizenship Clause] excludes those persons who, for some reason, are immune from, and thus not required to obey, U.S. law. …[E]nemy soldiers – as agents of a foreign sovereign – are not subject to U.S. law, notwithstanding their presence within U.S. territory. …[L]awful enemy combatants enjoy combatant immunity. Accordingly, children born to them are not entitled to birthright citizenship under the Fourteenth Amendment.”).

[xix] Esbjorn Rosenblad, Guerrilla Warfare and International Law, 12 MIL. L. & L. WAR REV. 91, 102, 120 (1973) (“The Prisoners of War Convention is not applicable to a resistance fighter who does not fulfill these conditions [of having a chain of command, fixed distinctive sign, carrying arms openly, & obeying the laws of war] and this probably applies to the majority of guerrilla fighters. Such an ‘unlawful’ combatant can thus not qualify for treatment as prisoner of war….”).

[xx] Hague Convention No. IV Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, Oct. 18, 1907, Annex, Art. 1, 36 Stat. 2277.

[xxi] Ho & Yoo, supra note 1, at 222 (“Unlike lawful combatants, unlawful combatants have no right to engage in hostilities and enjoy no immunity from prosecution for their military activities, nor do they receive the protections afforded under the laws of war to captured prisoners of war.”) (footnotes omitted).

[xxii] Jeannemarie Gardes, Terrorists on Trial: The Legal Dilemmas, 11 CRIM. JUST. J. 235, 259 (1988) (“[U]nlawful combatants, such as those who during war secretly and without uniform cross military lines in order to kill or destroy property, are not entitled to be treated as prisoners of war. But they are still subject to trial and punishment by military tribunal. Applying these classifications to terrorists, most would be deemed unlawful combatants. Thus the crimes for which they may be tried need not be classified as war crimes.”) (footnotes omitted).

[xxiii] F.B. Edwards, Natural-Born British Subjects at Common Law, 14 J. SOC’Y COMP. LEGIS. 314, 320 (1914) (“It should be observed that this exception applies only to children born to such enemy force, whether it be the legitimate child of a soldier or of a male non-combatant or the illegitimate child of a female camp follower”).

[xxvi]California and New Mexico: Message from the President of the United States, H. EXEC. DOC. 17, at 353-354.

[xxvii] See 2 MEXICO, supra note 1, at 229 (“Mexican tribunals were entirely free in dealing with Mexican affairs, though no one connected with our [United States] army could be tried by them….”).

[xxviii] Myers, supra note 1, at 215-223 (discussing the operations of the military commissions); also 2 MEXICO, supra note 1, at 220 (“[Gen. Scott] issued General Orders 20, which threw the pale of martial law round all United States forces operating in Mexico, and provided for the punishment, through ‘military commissions,’ of offences committed by, in or upon them.”) (footnote omitted).